How to avoid mucking up the most crucial part of discourse

Each year, the Federal Judicial Center—the splendidly organized education and research agency of the federal courts—holds a series of courses for newly seated federal judges. It’s informally called “Baby Judges’ School.” This year there were some 80 attendees, and I was asked to give a two-hour presentation on writing better judicial opinions. The specific focus was left up to me. I chose openers.

Why? Because most judges’ openers, like those of most advocates, are bad. Yet the opener is the most crucial part of any discourse.

That’s why journalists sweat the “lede” so much. (Yes, they’ve even developed their own special spelling for the starting paragraph.) And they have a formulaic bromide that is familiar to all: who-what-when-where-why?

Although that principle is well-known to lawyers, we seem to consider ourselves somehow exempt from its requirements. That’s too bad, because the whole purpose of the journalists’ approach is to enhance clarity. Hence legal writing suffers, whether in the form of research memos, motions, appellate briefs or judicial opinions.

Lacking a formal text at the Federal Judicial Center presentation, I decided to do something risky. I asked all the federal judges, many of whom had been sitting for a year already, to reconstruct from memory the first two paragraphs of one of their most important opinions in recent months.

The plan was to ask for five volunteers to read their openers. I would critique them (gently), show how I think the best judicial openers are done, and then ask them to rewrite their own openers along the lines I had suggested. The five volunteers would read their first efforts and then read their new versions.

At a reception that evening at the U.S. Supreme Court, Chief Justice John G. Roberts Jr. was incredulous. He told me: “You did what?! These are federal judges. Gutsy move.”

I suppose it was.

Click here to read the rest of “The Clear Opener” from the August issue of the ABA Journal.